ABA formal opinion addresses passive investment in nonlawyer owned law firms in jurisdictions which allow it

Hello everyone and welcome to this Ethics Alert, which will discuss ABA Formal Ethics Opinion 499 which addresses lawyers’ passive investments in nonlawyer owned law firms in jurisdictions which allow it.  The September 8, 2021 Formal Opinion 499 is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-499.pdf   

According to the opinion, a lawyer generally may invest passively in a law firm that includes nonlawyer owners in jurisdictions that permit such alternative business structures. The lawyer may passively invest even if the lawyer practices law in a jurisdiction that does not permit such nonlawyer ownership.

Most jurisdictions, including Florida, follow ABA Model Rules of Professional Conduct, specifically Model Rule 5.4, which prohibits nonlawyer ownership of law firms and prohibits lawyers from sharing fees or forming partnerships with nonlawyers. The opinion addresses whether a lawyer practicing in a jurisdiction that adheres to a version of Rule 5.4 (a “Model Rule Lawyer”) may invest in an alternative business structure in another jurisdiction. 

Arizona, the District of Columbia and Utah have modified their rules to permit nonlawyer ownership of firms and the sharing of legal fees. Arizona eliminated Rule 5.4 and allowed nonlawyer owners or investors in law firms to be certified as alternative business structures earlier this year.  The Florida Supreme Court’s Special Committee to Improve Delivery of Legal Services (of which I am a member) has recommended the authorization of minority nonlawyer ownership of law firms. 

The ABA formal opinion concludes:

A lawyer admitted to practice law in a Model Rule jurisdiction may make a passive investment in  a law firm that includes nonlawyer owners operating in a jurisdiction that permits such investments  provided that the investing lawyer does not practice law through the ABS, is not held out as a  lawyer associated with the ABS, and has no access to information protected by Model Rule 1.6 without the ABS clients’ informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction. With these limitations, such “passive investment” does not run afoul of Model Rule 5.4 nor does it, without more, result in the imputation of the ABS’s client conflicts of interest to the investing Model Rule Lawyer under Model Rule 1.10. The fact that a conflict might arise in the future between the Model Rule Lawyer’s practice and the ABS firm’s work for its clients does not mean that the Model Rule Lawyer cannot make a passive investment in the ABS. If, however, at the time of the investment the Model Rules Lawyer’s investment would create a personal interest conflict under Model Rule 1.7(a)(2), the Model Rule Lawyer must refrain from the investment or appropriately address the conflict pursuant to Model Rule 1.7(b).

Bottom line: As I indicated, most jurisdictions (including Florida) still continue to prohibit nonlawyer ownership of law firms and prohibits lawyers from sharing fees or forming partnerships with nonlawyers; however, Arizona and Utah have joined D.C in permitting nonlawyer ownership of law firms.  This opinion provides guidance to lawyers who are admitted in jurisdictions which permit such “alternative business structures”.  .

            Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

California Appeals Court finds that agreement giving lawyers “sole discretion” to settle client’s case violates ethics rules

Hello everyone and welcome to this Ethics Alert, which will discuss recent California appeals court opinion which found that an agreement giving lawyers “sole discretion” to settle client’s case violates ethics rules, appeals court says.  The case is Amjadi v. Brown, and the August 30, 2021 opinion is here: https://www.courts.ca.gov/opinions/documents/G059069.PDF 

The California Fourth Appellate District ruled that the provision that provides that the lawyers had sole discretion to settle a case was void and violated attorney ethics rules since it allows the attorney to accept a settlement without the client’s approval and over the client’s objections.

The fee agreement provision gave the lawyers in a personal injury law firm sole authority to accept settlement offers on behalf the client as long as the lawyers believed “in good faith” that the settlement offer was reasonable and in the client’s best interest. The client objected when her lawyer accepted a $150,000 settlement offer on the morning of the trial in her personal injury case.  The lawyer accepted the offer after the trial judge denied a motion filed by the client’s lawyers asking to be relieved as counsel due to a conflict of interest.

The trial judge accepted the settlement and dismissed the case. The client hired a new lawyer, who filed a motion to vacate the judgment and dismissal.  The appellate court vacated the judgment and reversed the dismissal and referred the client’s lawyer and two other former lawyers who represented the client to the California State Bar for investigation and potential discipline.

The appeals court opinion stated that a lawyer cannot settle a case if the client objects and cited to California Bar Rule 1.2 which states: “A lawyer shall abide by a client’s decision whether to settle a matter.” The opinion also stated that the agreement provision created a conflict of interest between the client and the lawyer when there is a disagreement regarding settlement and the client objects.

Bottom line: Lawyers must beware that they are not permitted to settle a matter without the client’s approval and a fee agreement provision providing for this will potentially be found to be void and a violation of Bar rules.

            Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.             

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

California Bar publishes Interim Formal Opinion providing information and guidance on the ethics of remote legal work

Hello everyone and welcome to this Ethics Alert, which will discuss recent California Interim Formal opinion which addresses the ethics issues surrounding remote legal work and provides information and guidance.  The interim opinion is here: https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/20-004-Ethical-Obligation-when-Working-Remotely.pdf 

The State Bar of California Standing Committee on Professional Responsibility and Conduct published Formal Opinion No. 20-0004 on remote work for comment. The opinion confirms the increasing numbers of attorneys practicing remotely, which it states has been driven both by technology as well as external circumstances, including COVID-19 and natural disasters such as the California fires.

The interim opinion addresses a lawyer’s inquiry regarding best practices for a law firm to allow attorneys and staff to work in a hybrid practice with a smaller physical office and some employees working remotely. The opinion notes that this is becoming more common and, although the California Rules of Professional Conduct do not directly address remote work, the current Bar Rules will be applied to the remote work environment.

The opinion discusses the primary Bar Rules which apply to the remote work environment, including competence, confidentiality, and communication, and discusses compliance with those rules in a home office or hybrid office environment. Competence and confidentiality are extremely important when a law firm is using technology to work online and store client information. 

According to the opinion, lawyers must understand the importance of the security of the technology programs that they use and/or consult with a third party who can properly advise them. Law firms have the responsibility to ensure that lawyers can remotely access files in a secure manner.  The opinion also suggests that competence is also tied to mental, emotional, and physical well-being:

The opinion advises lawyers to properly communicate with clients through appropriate and available means. Lawyers should verify that clients are timely receiving communications about their cases and also remind clients about the importance of maintaining security and confidentiality.

The opinion emphasizes the requirement of lawyer supervision and states that the law firm should provide fully assessed technological tools to lawyers and staff, and also maintain appropriate contact with employees who are working remotely. The opinion suggests that law firms develop best practices and policies for remote work and recommends that law firms have an established disaster plan.  The opinion also advises law firms to check their clients’ cybersecurity policies to comply with any required protocols.

The opinion also states that multi-jurisdictional and unlicensed practice of law issues may be implicated when a lawyer is working from a state in which the lawyer is not admitted. The opinion advises lawyers to consult the relevant multi-jurisdictional and unauthorized practice of law rules and laws. The opinion also cites to opinions in D.C., Florida and Utah and case law in California which address these issues.

The opinion concludes:

“Lawyers may ethically practice remotely under the California Rules of Professional Conduct and the State Bar Act, provided they continue to comply with these rules, including the duties of confidentiality, competence, communication, and supervision. Lawyers should implement reasonable measures to ensure compliance that are tailored to the relevant circumstances and remote working environment.”

Bottom line: Providing legal services remotely is here and will certainly continue.  Lawyers must be aware of the relevant Bar rule requirements and take steps to ensure compliance.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.             

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Pennsylvania lawyer who kept employee who stole from his aunt’s estate is suspended after the employee stole again

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court Order suspending a lawyer for 6 months after a nonlawyer employee stole from seven estates after the lawyer learned that she had stolen from his aunt’s estate and kept her as an employee.  The case is Office of Disciplinary Counsel v. William T. Krzton, Case No. 86 DB 2021.  The Order and Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania are here: https://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/86DB2020-Krzton.pdf   

According to the Disciplinary Board’s Report, the lawyer hired the employee in 2008 to handle estate accounting and perform other duties:  “In 2013, (the lawyer) became aware that (the employee) had stolen $3,300 from the decedent estate assets of Anita Mains by drawing one check on the estate account on which she had forged (the lawyer’s) signature. Ms. Mains was (the lawyer’s aunt and he served as executor for her estate.”  “(The lawyer) testified that ‘$3,300 was what my fee was going to be  to the estate, so nobody lost any money except me’ (the lawyer) admonished (the employee) not to take monies again and gave her a ‘second chance.’”

The lawyer admonished the employee and required her to repay the estate through a reduction in pay; however, she continued to steal money from estates. In May 2016, the lawyer was informed by the executrix of an estate that the employee was misrepresenting account balances.  The lawyer told the executrix that she must be mistaken.  The executrix then met with the bank and provided her allegations to a detective with the Allegheny County district attorney’s office.

The amount stolen from that estate was more than $96,000.00. The lawyer then investigated and discovered that, between July and September 2016, the employee had stolen from six additional estates, for a total amount of about $191,000.00.

Notwithstanding the lawyer’s knowledge of the investigation on July 1, 2016, he continued to employ the employee for two more months. He testified that he kept her on because he was “not literate” on her computer, he had several pressing client matters, and the employee did not have access to estate files and checkbooks during that time.

The employee pled guilty to criminal charges of theft and forgery, was sentenced to nine months to 18 months in prison, and was ordered to pay restitution of more than $202,000.00. The lawyer settled a lawsuit filed by the executrix for $92,500.

The Disciplinary Board found that the lawyer violated ethics rules requiring lawyers to act with reasonable diligence, keep clients reasonably informed, keep accurate accounting records, and supervise nonlawyers to ensure that their conduct is compatible with a lawyer’s professional obligations.

According to the Report: “Inexplicably, despite his knowledge of Ms. Hale’s dishonest conduct, (the lawyer) made no efforts to enhance supervision of her activities to ensure compliance with record-keeping responsibilities and prevent further thefts”   The lawyer’s “dereliction of his ethical duties had very serious consequences, as (the employee’s unfettered access allowed her to steal $191,026.99 from seven other estates.”

The Board’s Report also found that the lawyer violated trust account rules and failed to diligently handle another estate matter, which caused a 13 year delay in resolving the estate.

The lawyer was admitted to practice in Pennsylvania in 1976.  The Board considered his long career with no prior discipline, good reputation, cooperation in the investigation, and the fact that he made some reimbursement to the estates as mitigating factors and recommended a six month suspension.  In its August 6, 2021 Order, the Pennsylvania Supreme Court agreed with the Disciplinary Board and imposed the six month suspension. 

Bottom line:  This is another (and rather extreme) example of a lawyer who apparently abrogated his obligation to supervise an employee who stole nearly $200,000.00 of other people’s money that was held in trust.  Lawyer’s must supervise their employees and carefully consider whether to continue to employ an employee who has been proven to have stolen money.  It certainly could have been worse for this lawyer and, according to media reports, he has retired from practicing law.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Bar issues scam alert related to fake emails which purport to be from the Florida Bar Lawyer Regulation staff

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar scam alert related to fake e-mails which purport to be from the Florida Bar Lawyer Regulation staff.

According to the scam alert on the Florida Bar’s website, the fraudulent emails are from spoofed email accounts designed to look like they are from The Florida Bar.  The email states a Bar complaint has been filed against the lawyer and directs the lawyer to open an attachment or click on a link.  These emails are not from The Florida Bar and if you receive this email, you should to immediately delete it.  You should never open attachments from unknown senders and, according to the Bar’s alert, The Florida Bar will not send any notices of Bar complaints filed against the lawyer via email.

The Florida Bar scam alert further states that: “Lawyers are always advised to keep their guard up as scammers become increasingly clever in their quest to do harm.  LegalFuel — The Practice Resource Center of The Florida Bar, has additional resources available on its website to help lawyers recognize and avoid becoming victims of a scam.”

Bottom line: Always be aware of potential scams and do not open email attachments from spoofed senders.  You can usually hover over the email address to determine if it is a spoof/scam email address. 

Be careful out there…and don’t fall for this scam.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Missouri lawyer who stated “F**k you” to a St. Louis circuit judge is held in contempt and sentenced to 7 days in jail

Hello everyone and welcome to this Ethics Alert, which will discuss the recent St. Louis judge’s Order finding a lawyer in contempt for stating “F**k you” to the judge.  The case is Daniel House v. Total Access Urgent Care, et al., Case No. 19SL-CC01573-6 and the July 14, 2021 Order is here: https://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/5/0d/50d8e1f5-f695-5e28-b334-ad2f1adfd824/60ef594064f43.pdf.pdf   

According to the Order, on July 14, 2021, at a scheduled hearing before Circuit Judge John N. Borbonus, St. Louis County Circuit Court, lawyer Eugene H. Fahrenkrog, Jr. stated “f**k you” to the judge (the word is spelled out in the Order).  The Order further states: “Said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt proceedings of this Court and to impair the respect due its authority”.

The judge’s Order concludes:  “Therefore, this Court having presented Eugene H. Fahrenkrog Jr. with oral notice of the act so charged, and this Court having presented Eugene H. Fahrenkrog Jr. with an opportunity to answer to the criminal contempt, the Court finds beyond a reasonable doubt is guilty of direct criminal contempt” and issues a warrant and commitment to law enforcement to take the lawyer into custody in St. Louis County “until released according to law or until further order of the Court.”

According to a recent article in the St. Louis Post-Dispatch, it unknown what prompted the courtroom outburst; however, the docket in the case reflects “an ongoing dispute over the production of evidence among the parties of the lawsuit and that Wednesday’s hearing was an attempt to resolve those issues.”

Bottom line: I do not know if I have ever have seen such a direct, degrading, and profane challenge to a judge’s authority in my career.  It will be interesting to see what, if anything, the Missouri Bar and disciplinary authorities do with it.   

Be careful out there…and don’t do this of course.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.             

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, advice and representation of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Oregon lawyer reprimanded for responding to negative client online reviews with details of client’s criminal convictions

Hello everyone and welcome to this Ethics Alert, which will discuss the July 15, 2021 Oregon Supreme Court opinion which reduced a recommended discipline of 30 days and reprimanded a lawyer for providing details of client’s criminal convictions in responses to the client’s negative online reviews.  The case is In re Complaint as to Conduct of Brian Conry, OSB No. 18-104, SC S067502 and the opinion is here: https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9335/rec/1 

According to the opinion, the lawyer’s former client had posted negative reviews in 2015-2016 on Yelp, Google and Avvo which had the client’s first name, “Yarik,” or his first name and first initial of his last name. In one review, the client complained that he paid the lawyer more than $20,000.00 for legal services on his immigration case.  In other negative reviews, the client claimed that he paid the lawyer $30,000.00.  

The client also claimed that, despite paying the fee, the U.S. government ordered him deported; however, when he hired a new firm, he won his case on appeal.  The client called the lawyer a “horrible attorney” and a “very crooked attorney”, that he “made a lot of mistakes, and the biggest one was that I was not deportable with the charges I had. And he still lost my case. I mean how bad of a lawyer do you have to be to lose something that can’t be lost?”

The lawyer responded to the online complaints in June 2016 and stated that the client has been convicted of theft and burglary in the second degree, that his work on the case delayed his deportation, which allowed the client to remain in the country until the law changed, and that the client could argue that his burglary conviction was not a crime of moral turpitude requiring deportation.  The lawyer also stated that the client conflated dollars paid for attorney fees with dollars paid for costs, such as filing fees and investigative services. 

The lawyer used the client’s full name in his response to the negative Avvo review but removed it about a month later. He removed all of his responses in October 2016.

The opinion states: “This  case  raises  important  and  difficult  considerations  regarding  the  developing  importance  of  online  reviews for attorneys’ practice of law and the limits on their responses  to  such  reviews  given  their  obligation  to  protect  client confidentiality.” 

The opinion further states that the prohibition on revealing information relating to the representation of a client includes not only confidential information, but also information “related to the representation” which would be embarrassing or detrimental to the client.  Although the criminal convictions were a matter of public record, revealing the convictions in the public response was embarrassing to the client.

The lawyer argued that he was entitled to reveal the information under the confidentiality exception which allows a lawyer to reveal information relating to the representation of a client to the extent that the lawyer reasonably thinks is necessary to establish a claim or defense in a controversy between the lawyer and the client.  The opinion states that the lawyer revealed the client’s name, which he could not reasonably believe was necessary for his defense.

By posting client’s name together with the details of client’s criminal history”, the lawyer “revealed client’s identity and his convictions, not just to those persons who sought out these particular reviews but also to other members of the public, as well. Internet search engines would make client’s identity available to a much larger audience. Now, anyone who searched for client’s name in an internet search engine, for any reason whatsoever, could uncover the details of client’s criminal convictions.

The opinion found mitigating factors that the lawyer had no prior discipline, that he made a full disclosure to the disciplinary board, and that he had a cooperative attitude.  The opinion found aggravating factors of substantial experience in law practice and acting with a selfish motive.  The opinion stated that a public reprimand was appropriate “in light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors.” 

The opinion concludes:

“As  we  have  noted,  the  presumptive  sanction  here  is a suspension. In light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors, we conclude that such a result would be too harsh. We hold that respondent should be publicly reprimanded.  Respondent is publicly reprimanded.”

Bottom line:  I agree with the Oregon Supreme Court opinion that this case “raises  important  and  difficult  considerations” which must be addressed due to the widespread use of online platforms by clients, former clients, and others to make incendiary and false allegations to which lawyers are not permitted to make substantive responses. 

I would urge the lawyer disciplinary authorities in all jurisdictions (including Florida) to consider revising the lawyer disciplinary rules to permit lawyers to provide substantive responses to false online reviews by clients and others.  The fact that a lawyer can potentially file a civil lawsuit is not enough. 

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

New York Ethics opinion states that lawyers may provide legal services to clients and use marijuana under NY law

Hello everyone and welcome to this Ethics Alert, which will discuss the July 8, 2021 New York Ethics opinion which states that NY lawyers may provide legal services to clients in compliance with New York’s recreational marijuana law, own marijuana businesses, and personally consume marijuana.  NYSBA Opinion 1225 is here: https://nysba.org/app/uploads/2021/07/Opn-1225-with-letterhead.pdf. 

The NYSBA ethics opinion pointed out that, although marijuana remains illegal under federal law, 17 states, Washington, D.C., and Guam have legalized its recreational use since 2012. The opinion states:

“It seems fair to say that for nearly a decade federal forbearance in the enforcement of federal narcotics laws has been equally applied to state laws legalizing recreational marijuana and to state laws legalizing medical marijuana.”

The ethics opinion further stated that lawyers must ensure compliance with the regulatory requirements in New York’s medical marijuana industry applies equally if not more to its recreational marijuana industry.

“In a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value…Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt.”

The opinion reviewed Rule 8.4(b) and (h) of the New York Rules of Professional Conduct, which states that a lawyer cannot “engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” or “engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer”; however, Comment 2 to the New York Rule states that: “Many kinds of illegal conduct reflect adversely on fitness to practice law. Illegal conduct involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice is illustrative of conduct that reflects adversely on fitness to practice law.”

“Nothing the inquirer proposes to do involves acts of violence. Moreover, if the inquirer’s ownership interest in a cannabis business, her home cultivation of marijuana plants, and her personal recreational use of marijuana comply with the Recreational Marijuana Law, they will fall within the scope of federal forbearance. For that reason, although those activities are technically illegal under federal law, they will not constitute illegal conduct that involves “dishonesty, fraud, breach of trust, or serious interference with the administration of justice.” Accordingly, without more, such conduct would not adversely reflect on the inquirer’s “honesty, trustworthiness or fitness as a lawyer” within the meaning of Rule 8.4(b).”

The opinion cautioned that excessive use of marijuana could negatively impact a lawyer’s ability to represent his or her clients.  According to the opinion: “(n)othing we say here connotes approval of such excessive use or establishes a protective shield for a lawyer who is facing disciplinary charges, malpractice claims or other adverse consequences arising out of marijuana use.”

The opinion concluded:

“In light of current federal enforcement policy, the New York Rules of Professional Conduct permit a lawyer to assist a client in conduct designed to comply with New York’s Recreational Marijuana Law and its implementing regulations, notwithstanding that federal narcotics law prohibits the activities authorized by that law. A lawyer may also use marijuana for recreational  purposes and may, when the law becomes fully effective, cultivate an authorized amount of  marijuana plants at home for personal use. Finally, subject to compliance with Rules 1.7 and  1.8(a), an attorney may accept an equity ownership interest in a cannabis business in exchange for legal services.”

Bottom line:  This New York ethics opinion wades into the continuing trend toward legalization of marijuana and the lawyer’s duties and obligations related to same.  New York lawyers now have an ethics opinion which authorizes them to advise clients on the marijuana laws, own marijuana businesses, and legally use marijuana without violating New York’s ethics rules.

            Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Bar Board Ethics Committee approves Rule amendment permitting lawyers to respond to former client negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governors (BOG) Ethics Committee’s approval of an amendment to Bar Rule 4-1.6 which would permit a lawyer to respond to “specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.”  The documents related to the BOG’s ongoing review of this proposed amendment are attached. 

As background, the Florida Bar’s Professional Ethics Committee (PEC) unanimously approved the proposed amendment to Bar Rule 4-1.6(c) (Confidentiality of Information) at its March 23, 2021 meeting.  The proposed amendment provides for an exception to permit lawyers to respond to online criticisms from former clients if those clients allege that a lawyer committed a criminal offense.  The BOG Review Committee on Professional Ethics approved the proposed rule amendment on May 20, 2021 by an 11-0 vote.

The proposed amendment would add subsection (c)(7) to Rule 4-1.6, which would state:

(c) When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to:

(7) respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.

A new proposed Comment would state:

Subdivision (c)(7) allows a lawyer to respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law. However, under subdivision (f), even when the lawyer is operating within the scope of the (c)(7) exception, disclosure must be no greater than the lawyer reasonably believes necessary to refute the specific allegations.

            The proposed Rule 4-1.6 amendment will continue to be reviewed by the BOG.  If the BOG approves the amendment, it will ultimately go to the Florida Supreme Court for review and potential implementation.

Bottom line:  Lawyers must be aware that they cannot reveal confidential information when responding to online complaints or criticisms by former clients; however, if the narrow Rule 4-1.6 amendment is implemented by the Florida Supreme Court, lawyers would be able to respond to internet complaints that accuse them of committing a crime and provide confidential information.  I will continue to monitor developments on this issue and the proposed Rule 4-1.6 amendment.

            Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Bar Rule 4-7.18 amendment regarding misleading law firm search terms pending at Florida Supreme Court

Hello everyone and welcome to this Ethics Alert, which will discuss the Rule 4-7.18 amendment pending before the Florida Supreme Court which states that a “statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to knowingly contact a different lawyer or law firm” is deceptive or inherently misleading.” 

As background, in and about 2013, upon the request of the Florida Bar’s Board of Governors (BOG), the Bar’s Advertising Committee issued Proposed Advisory Opinion A-12-1 which stated that the purchase of a law firm competitor’s name to gain an advantage in search rankings was unethical.

In December 2013, the BOG voted 23-19 to withdraw Proposed Advisory Opinion A-12-1, stating that the purchase of AdWords was permissible, as long as the resulting advertisements or sponsored links are clearly advertising based on their placement and wording.  The BOG’s rationale at the time was that hidden text and meta tags have become so outdated that search engines penalize rather that reward them.

The BOG later revisited the issue and, on May 24, 2019,  the BOG approved proposed amendments to 4-7.18 on a voice vote without objection.  The BOG approved the following amendment to 4-7.18:

Examples of Deceptive or Inherently Misleading Advertisements

(12) A statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to knowingly contact a different lawyer or law firm.

The proposed amendment was filed with the Supreme Court of Florida by The Florida Bar on October 5, 2020 and is still pending before the Court.  The case is: In re: Amendments to the Rules Regulating The Florida Bar – Biennial Petition, Case No. SC20-1467.

The Bar’s 10/5/20 Petition to Amend the Bar Rules is here:  https://efactssc-public.flcourts.org/casedocuments/2020/1467/2020-1467_petition_76620_petition2damendment20to20rules2028florida20bar29.pdf

The link to the Florida Supreme Court’s docket regarding the Florida Bar’s Petition related to the proposed amendment to Rule 4-7.13 (and other proposed amendments) is here:  http://onlinedocketssc.flcourts.org/DocketResults/CaseDocket?Searchtype=Case+Number&CaseTypeSelected=All&CaseYear=2020&CaseNumber=1467

The Supreme Court’s Order stating that the case was submitted without oral argument is dated October 23, 2020.   

Bottom line:  The Supreme Court will issue an opinion regarding the proposed amendment to Rule 4-7.18. Regardless, the BOG’s approval of the proposed amendment makes it clear that the BOG believes that the purchase of another law firm’s name solely to gain an advantage in internet searches would be deceptive and would potentially be violation of Florida Bar Rule 4-8.4(c), which prohibits lawyers from engaging in conduct in connection with the practice of law involving dishonesty, fraud, deceit, or misrepresentation.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs